Sources of IEL

Question 1

What are the 4 main sources of international law according to the Article 38(1) of the ICJ Statute?

Answer 1

1. Conventions (treaties) are the primary source of IEL
   - Most rules in IEL come from treaties
2. Customary international law
   - As evidence of a general practice accepted as law (belief that they are acting in accordance with law)
   - NB: Doesn’t need to be written down anywhere

(and subsidiary sources…)

3. General principles of law recognised by civilised nations
   - Idea: such practice can help inform the development of IEL principles
4. Judicial/Arbitral decisions, and high academia

Question 2

Is soft law binding?

And what type of instruments do they typically appear in? (4)

Answer 2

No, non-binding instruments

Typically come as:

• Codes of conduct
• Guidelines
• Resolutions
• Declarations of principles and standards

Question 3

How are Multilateral Environmental Agreements (MEA’s) treaties different from regular treaties vis-a-vis states are concerned?

Answer 3

Concerned more with how a state itself should act in its own boundaries, as oppose to state vs. state

Question 4

How are Multilateral Environmental Agreements (MEA’s) treaties different from regular treaties regarding on-going obligations?

Answer 4

Intended to be an ongoing process of regulation for the environment, unlike most other treaties which are a sign and walk-away situation

Question 5

What is meant by Multilateral Environmental Agreements (MEA’s) treaties having a ‘framework Convention approach’?

Answer 5

Essentially the treaty just provides a framework to help flesh out the details of what should happen, which is the State’s responsibility

Often contain the general ‘goals’ or ‘principles’ in addition to the ‘rules’

Question 6

What’s the difference between ‘rules’ and ‘principles’ in a Multilateral Environmental Agreements (MEA’s)?

Answer 6

Rules are the principles that are binding on a state

Principles are used to encourage behaviour but are not a binding rule or process

Question 7

What is the benefit of having simply just a framework Convention approach?

Answer 7

Gives States greater flexibility in how they implement the Convention into domestic law and policy in order to be effective

Also, this flexibility allows for an ability to adapt to measures quickly

Question 8

What is the intention of soft law instruments?

And what are states expected to do with it?

Answer 8

Soft law “creates and delineates goals to be achieved in the future rather than actual duties, programs rather than prescriptions, guidelines rather than strict obligations.”
-I.e. Intended to have normative significance, and influence development of the law

There is generally an expectation that states will put into effect what is contained in soft law instruments (i.e. obligation of good faith to adopt)

Question 9

Why would a state be more keen on signing up to a soft law instrument rather than a hard law instrument?

Answer 9

Often easier to get political buy in to soft law as opposed to signing up to a hard law treaty instrument

• This is handy where a country is not yet willing to sign up to a binding treaty
• And because of this^, they are often easier to negotiate

Question 10

Can soft law BECOME hard law?

Answer 10

Soft law can also have a flow-on effect into hard law; both Rio and Stockholm have had an impact on hard law

Question 11

Why would a state be more keen on signing up to a hard law instrument rather than a soft law instrument?

Answer 11

Binding on all the parties

May be best used when an issue is new- states can ‘nip it in the butt’ before any further problems escalate